- ACCEPTANCE OF TERMS OF PURCHASE
- Acceptance of Terms. These terms of purchase ("Terms of Purchase") are an ongoing contract between you and T-Mobile USA, Inc. ("T-Mobile") and apply to your purchase of Inventory Products through T-Mobile's online website located at https://superior.bstock.com (the "Site"), which is hosted, configured and operated by B-Stock, an independent third party. You acknowledge and agree that T-Mobile will have no responsibility or liability to you related to B-Stock’s operation of the Site. These Terms of Purchase govern your purchase of Inventory Products from the Site in consideration of the mutual promises set forth herein and such other good and valuable consideration. By checking the "I agree to the Terms of Purchase" box and clicking on the "I Accept" icon each time you log into the Site, you accept and agree to be bound by these Terms of Purchase. If you do not agree to these Terms of Purchase, you should not bid on or purchase Inventory Products from the Site.
- Modification of Terms. T-Mobile reserves the right, from time to time, with or without notice to you, to change these Terms of Purchase in its sole and absolute discretion. The most current version of these Terms of Purchase can be reviewed by clicking on "Terms of Purchase" located at the bottom of the pages of the Site. The most current version of the Terms of Purchase will supersede all previous versions. Your use of the Site or continued purchases after changes constitute your notice of and agreement to be bound by such changes. No purchase order or other documentation issued by you to T-Mobile will alter these Terms of Purchase unless signed by an authorized T-Mobile representative.
- ADDITIONAL DEFINITIONS
"Content" means any and all information, service or content provided by T-Mobile in any medium in connection with these Terms of Purchase, including promotional content and Listings to be displayed on the Site.
"Buyer" or "you" or "your" means the individual business that purchases Inventory Products from T-Mobile through the Site under the terms described herein and the entity that such individual represents in making the purchase, if applicable.
A "Completed Purchase" occurs when (i) you have provided to T-Mobile all of the purchase information requested in the Email Notification in the manner specified in such Email Notification to complete your purchase and (ii) the Purchase Price for the Inventory Products has been received in the T-Mobile account specified in the Email Notification.
"Extended Auction" means an auction where if a bid is entered within the final 5 minutes of the original closing time, the auction will be extended by 3 minutes. If a bid is then placed before the extended 5 minutes elapses, the auction will be extended again for 3 minutes and the listing will continue to be extended until there are no new bids placed within the final 5 minutes of the auction.
"Inventory Products" will mean T-Mobile's inventory products that are available for purchase on the Site under the terms of these Terms of Purchase.
Listing means the content on the Site associated with particular Inventory Products, including but not limited to the description and quantity of the Inventory Products. T-Mobile will have the right to modify or correct any Listing at any time, and such modification will be binding on any purchase of any Inventory Products purchased after such modification had been made.
- AUCTION PROCESS
- Inventory Products. Inventory Products include but are not limited to cell phones, tablets, smartwatches, accessories (Bluetooth and non-Bluetooth), and internet of things or "IoT" devices, some of which may have previously been shipped. The condition of the Inventory Products will vary, and standard designations regarding a product's condition will be set forth in the Listing. The conditions of the Inventory Products are described in the Listing to the best of T-Mobile's ability; however, T-Mobile does not warrant that the Listings are complete, accurate, reliable, current, or error-free. The Inventory Products are provided to you "as is" for purchase on the Site. The value of actual Inventory Products in each lot may vary up to 5 percent (5%) less or greater than the number set forth in the Listing and may include up to 5 percent (5%) value of more damaged items than designated as "Damaged" in the Listing. Accessories (such as USB cables, charger blocks, earbuds, and in-box literature) may or may not be included.
- Auction Process. Inventory Products will be sold pursuant to the auction process set forth in this Section 3 (the "Auction"). If you wish to bid on Inventory Products, you will be required to enter your bid amount. Your bid must be (i) in an amount higher than the bid listed as the minimum opening bid and the "current winning bid," as applicable, (ii) in the bid increments set forth on the bid page and (iii) placed before the scheduled closing time for such Auction (including any additional time added for an Extended Auction), for your bid to be eligible for the Auction. THE SUBMISSION OF A BID CONSTITUTES AN IRREVOCABLE OFFER TO PURCHASE THE INVENTORY PRODUCT(S) ON WHICH YOU BID AT THE PURCHASE PRICE SUBMITTED, WHICH T-MOBILE MAY ACCEPT OR REJECT IN T-MOBILE'S SOLE DISCRETION, ON THE TERMS AND CONDITIONS OF THE LISTING AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THESE TERMS OF PURCHASE. If your bid is deemed the winning bid, you will be notified by email (the "Email Notification") at the email address you provided when you registered for your account, as updated by you from time to time by following instructions on the Site. This Email Notification will serve as your official proof of purchase and official invoice. Any additional formal invoice or proof of purchase outside of the original winning notification is not available. It is your responsibility to keep your email address current and to timely check your email to determine if you are the winning bidder for any Auction in which you participated. T-Mobile is not responsible for the failure of an Email Notification to reach a winning bidder for any reason, including but not limited to technical problems or other system error.
- Winning Bids. If your bid is deemed the winning bid at the end of the Auction for certain Inventory Products, you agree to promptly purchase such Inventory Products pursuant to the terms and instructions set forth in these Terms of Purchase and in the Email Notification. If you fail to register a Completed Purchase within two business days of when the Email Notification is sent, you will forfeit any right to purchase such Inventory Products and T-Mobile may deactivate your account and password so you can no longer access the Site and, at its sole discretion, may choose to (i) contact the next highest bidder in the Auction for such Inventory Products and offer to sell such Inventory Products to such bidder at such bidder's bid price, or (ii) post such Inventory Products on the Site for sale in a new Auction. In addition, T-Mobile may restrict you from bidding in any further auctions at the Site. Penalties for your failure to complete the purchase of Products that are the subject of your winning bid are as set forth below.
In the event that you do not pay for any given winning bid, you may be given the chance to pay a reinstatement fee in order to prevent the deactivation of your account. The fee amounts are as follows, within any 12-month period:
|1st offense||2nd offense||3rd offense|
|If the amount is between 0-$10,000
|If the amount is over $10,000
- Deactivation; Cancellation. T-Mobile reserves the right, in its sole discretion at any time and for any reason, to deactivate your Site account, reject any offer to purchase Inventory Products or suspend or cancel any Listing, Auction, or purchase of Inventory Products, including fulfillment of a purchase after completion of an Auction and payment for the Inventory Products. If T-Mobile cancels any purchase of Inventory Products after you have submitted payment for such Inventory Products, T-Mobile will direct B-Stock to issue a credit to use on the B-Stock site or other method selected by T-Mobile or B-Stock.
- CONDITIONS TO SALE; PAYMENT
- Purchase Price. In consideration for your payment of the purchase price set by the winning bid and any additional fees, for certain Inventory Products in an Auction (the "Purchase Price"), T-Mobile hereby agrees to sell to you such Inventory Products for which you have posted the winning bid pursuant to your compliance with the terms set forth in these Terms of Purchase and the Email Notification. The Purchase Price is exclusive of any governmental transaction taxes and fees that may be applicable to the Inventory Products purchased. You agree to pay the Purchase Price plus governmental taxes and fees, if applicable, for the Inventory Products by wiring the full amount of the Purchase Price plus any applicable governmental taxes and fees to the bank account set forth in the wiring instructions included in the listing descriptions and winning bid Email Notifications, within two business days after the end of the applicable Auction. Your failure to pay the Purchase Price means that the winning bid may be forfeited, and T-Mobile has the right to relist the auction or sell to another bidder in its sole discretion. Nothing in these Terms of Purchase will otherwise obligate T-Mobile to sell Inventory Products to you. You will be responsible for any and all other fees or expenses incurred in connection with your purchase hereunder.
- Canceled Bids and Purchases. There may be certain bids and purchases that we are unable to accept and must cancel. We reserve the right, at our sole discretion, to refuse or cancel any bid or purchase for any reason. For example, T-Mobile may cancel your bid or purchase if there are inaccuracies or errors in product or bid information, or problems identified by our credit and fraud avoidance department. While T-Mobile strives to provide accurate product and bid information, typographical or system errors may occur. If we decide to cancel a bid or purchase, you will be notified by email of such cancellation. T-Mobile may choose not to award Inventory Products to you for any reason, including but not limited to T-Mobile’s concerns with your ability to comply with law or otherwise meet the terms and conditions of these Terms of Purchase.
- Payment Terms. You will submit the Purchase Price plus any applicable governmental taxes and fees including federal, national, state or local sales or use taxes or value added taxes or environmental fees to T-Mobile under the payment terms set forth in the Email Notification and on the Site. T-Mobile may revise the payment terms from time to time in its sole and absolute discretion upon notice to you; provided, however, that any change to payment terms will not be effective for any then-pending sale but will only be effective for sales subsequent to such notice. Upon acceptance of the Purchase Price and the fulfillment of any other conditions to the sale, T-Mobile will sell, assign, transfer and convey to you all of T-Mobile’s right, title and interest in and to the Inventory Products and will arrange with you for pickup of such Inventory Products in the manner set forth in Section 5 below.
- Removal of Identification Marks and Customer Information. Prior to the transfer, disposal, refurbishing, recycling, sale or any other disposition of the Inventory Products, you agree: (a) to remove from the Inventory Products and properly dispose of all T-Mobile identification marks including but not limited to labels, trademarks, trade names, service marks, SKU numbers and bar codes, other than those identification marks contained on the original packaging that are required by law ("Identification Marks"); (b) to remove from the Inventory Products and properly dispose of any information about persons or entities, including personally identifiable information, financial account information, customer proprietary network information, other account information and/or account activity information, or other information or data that can be used for identity theft (including that which is not personally identifiable information) ("Customer Information"); and (c) to comply with any additional requirements specified in the listing for the Auction Products regarding the sanitation of the Auction Products. You will use best industry standards for the sanitation of the Inventory Products and agree to comply with all state, federal and local rules and regulations with respect to the disposal of the Identification Marks, any Customer Information, and the deleted files and other information, including but not limited to laws relating to privacy. You acknowledge that monetary damages may not alone be a sufficient remedy for failure to comply with the requirements of this Section 4.4 and that T-Mobile will be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Further, you acknowledge and agree that if there is a breach or threatened breach of the provisions regarding sanitization herein, T-Mobile will be irrevocably harmed and entitled to seek a temporary restraining order, injunction, and/or other equitable relief against the commencement or continuance of such breach without the requirement of posting a bond or proving injury as a condition of relief. In addition, in the event that your performance of obligations under this Section 4.4 results in the creation of any waste or other material, your handling of that waste or material will be subject to the requirements of the indemnification provisions of these Terms of Purchase.
- You must sanitize all purchased Inventory Products as required herein in order to get the Inventory Products into re-saleable condition, and such Inventory Product may only be re-sold if it passes the sanitization standards set forth in these Terms of Purchase. You will destroy any Inventory Products that you are not able to sanitize as required herein in accordance with the provisions set forth in these Terms of Purchase and in accordance with all applicable laws, rules, regulations and standards (including environmental) at no cost to T-Mobile.
- Taxes. You are responsible for any applicable governmental transaction taxes or fees including sales or use taxes, value added taxes, environmental fees or similar taxes and fees, however described, that arise from your purchase of the Inventory Products under these Terms of Purchase. These governmental taxes and fees will be assessed and collected from you unless you provide us with valid exemption documentation, which validity shall be solely determined by us, such as a sale for resale exemption certificate. T-Mobile is not liable for any of the taxes or fees that you are legally obligated to pay as a result of your distribution or resale of Inventory Product purchased under these Terms of Purchase. All such taxes (including without limitation, income taxes, withholding taxes, value added, franchise, gross receipt, sales, use, property or similar taxes, duties, levies, fees, excises or tariffs incurred in connection with or related to the distribution of the Inventory Products) will be your financial responsibility. You understand and acknowledge that you will be solely responsible for all taxes, your and your employees’ wages, benefits, unemployment compensation and workers’ compensation and all other costs and expenses relating to your employees and applicable to the performance of these Terms of Purchase, whether imposed now or at a later date. If T-Mobile is audited by a taxing authority or other governmental entity with respect to a tax matter arising from these Terms of Purchase, you agree to reasonably cooperate with T-Mobile in order to respond to such audit inquiries in an appropriate and timely manner so that the audit and any resulting controversy may be resolved expeditiously. Notwithstanding anything herein to the contrary, you additionally agree to retain such tax and fee records as may reasonably be requested by a taxing authority, and to provide access and sharing of such tax and fee records to T-Mobile in the event of such a request for five years from date of purchase of the Inventory Products.
- ACCEPTANCE AND REMOVAL OF INVENTORY PRODUCTS
- Inventory Products purchased by you will be made available to you for pickup at the T-Mobile facility identified in the Email Notification (the "Inventory Location"). You or your agent must schedule a pickup time (the "Pickup Time") by contacting T-Mobile pursuant to the instructions set forth in the Email Notification. The Pickup Time must occur within four business days after notice to you from T-Mobile that the Inventory Products are ready for pickup. You are solely responsible for removal of the Inventory Products from the Inventory Location and for all shipping arrangements including without limitation permits, costs and licenses, expenses (including but not limited to insurance), risk of loss in transit, and labor. Your employees, equipment, and property and that of your agents, enter and remain at the Inventory Location entirely at your risk. While at the Inventory Location, your employees and agents must observe all of T-Mobile’s policies, rules and regulations. You will remove all Inventory Products from the Inventory Location within four business days of T-Mobile’s notice to you that the Inventory Products are ready for pickup. If you fail to pick up such Inventory Products within four days, T-Mobile, in its sole discretion, may choose to (a) keep such Inventory Products, list them for auction on the Site and sell them to another bidder and credit to you the Purchase Price you paid to T-Mobile less (i) a storage charge of $500 per day for each day that T-Mobile held the Inventory Products for you after you registered a Completed Purchase, and (ii) a restocking fee of up to twenty percent (20%) of the Purchase Price, in which case you will not have any right, title or interest in or to the Inventory Products; or (b) complete the sale with you at a Purchase Price equal to the original Purchase Price plus the storage charges and restocking fee set forth in the foregoing subsections (a) and (b).
- Title; Risk of Loss. Title to the Inventory Products will remain with T-Mobile until you or your agent take possession of the Inventory Products at the Inventory Location. Delivery will be ‘Ex Works - Point of Purchase,’ as defined in the Incoterms 2010. You will pay all freight charges. You expressly acknowledge that risk of loss and liability for the Inventory Products will pass to you upon your or your agent’s receipt of the Inventory Products at the Inventory Location, and after such time you will release T-Mobile of any fault and will forfeit any rights to claims against T-Mobile associated with the Inventory Products or the receipt of the Inventory Products purchased by you.
You further release B-Stock of any liability and waive all claims against B-Stock with respect to such Inventory Products. You expressly acknowledge and agree that you will have no right to refuse or return the Inventory Products after accepting possession of the Inventory Products at the Inventory Location for credit, exchange, or otherwise.
- Acceptance. Your acceptance of possession of the Inventory Products from T-Mobile pursuant to Section 5.2 will constitute an unqualified acceptance of the Inventory Products and a waiver by you of all claims with respect thereto except as set forth in Section 5.4. All sales are final. No returns or refunds are allowed under any circumstances.
- Inspection. You will have five days from the pickup of Inventory Products in accordance with Section 5.1 to inspect the shipment for any discrepancies in the quantity delivered and report such discrepancy to B-Stock in writing with supporting materials. Any discrepancy report must include (a) video footage of the Inventory Product being received at your facility; (b) the dimensions and pallet weight at the time of receipt at your facility; (c) a manifest detailing each item that is alleged missing or damaged and, if damaged, the exact nature of such damage; and (d) any supporting images or other documentation you believe is relevant to your claim. T-Mobile reserves the right to conduct an additional inspection at its own expense. If T-Mobile, acting reasonably and in good faith, agrees that an under-delivery or damage has occurred greater than 5% based on the listed retail value of the auction, you will be reimbursed an amount equal to the approved discrepancy. By way of example, if you win an auction and pay a winning bid of $1,000 and the shipment is missing an item that is 10% of the value of the auction, you will be issued a reimbursement in the amount of $100 (i.e., 10% of the of the listed retail value of the auction). Such reimbursement may be in the form of an offset against any amount you may owe to T-Mobile or in another form authorized by T-Mobile at its discretion. Following such inspection period, you will no longer have the right to claim any reimbursement for under-delivery or damage.
You will not use or disclose to any individual or entity, including but not limited to any transferee or subsequent purchaser of the Inventory Products, the following: (a) that you purchased or received the Inventory Products from the Site and any information regarding the Purchase Price of any purchased Inventory Products, taxes and fees paid thereon and any particular sale; (b) the nature or result of any business relationship with T-Mobile, including these Terms of Purchase; (c) any of the Identification Marks; (d) any Customer Information; (e) any files or information stored within any of the Inventory Products that are computers or other consumer electronics containing memory or other storage; and (f) other information of a nature not generally disclosed by T-Mobile to the public. For the avoidance of doubt, this Section 6 will survive the termination or expiration of this Agreement.
- ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES
You represent and warrant to T-Mobile that:
(a) Prior to transport, alteration, mixing, disposal, incineration, or recycling of any Inventory Product or component(s) thereof, you shall complete a hazardous waste determination in accordance with 40 C.F.R. § 262.11 and applicable state, provincial or local laws, rules, or regulations of all relevant jurisdictions relating to your intended management, disposal or recycling of the Inventory Product or component(s) thereof. In the event that an Inventory Product is classified under any such law, rule or requirement as a hazardous waste, and you undertake to manage, recycle or arrange for the recycling of that Inventory Product, and if the recycling of that Inventory Product is potentially subject to the provisions of 42 U.S.C. § 9627 ("recycling transactions"), then you shall comply with all requirements of 42 U.S.C. § 9627 necessary to qualify for the liability exemptions provided in that statutory provision.
(b) You currently comply and will continue to comply with all federal, state, provincial and local laws, rules, and regulations of all relevant jurisdictions governing the use, management, disposal, incineration, or recycling of Inventory Products or components thereof.
(c) You have not been convicted o, or received a citation for a violation of any federal, state, provincial or local law, rule, or regulation of any relevant jurisdiction governing the management, disposal, incineration, or recycling of waste.
For the purposes of these representations and warranties, the terms "management," "transport," "disposal," "incineration" and "recycling" will have the same meaning as defined in Section 8, below ("Environmental Indemnification").
- ENVIRONMENTAL INDEMNIFICATION
All determinations regarding the status, handling, disposal, recycling or reuse/resale of Inventory Products after title has passed to you in accordance with these Terms of Purchase will be the sole responsibility of and made by you. You agree to indemnify, defend, and hold T-Mobile harmless from and against any losses, attorneys’ fees, costs, liabilities, damages, penalties, third-party claims, demands, actions, or causes of action arising out of or in connection with your reuse, resale, handling, transportation, disposal, incineration, or recycling of the Inventory Products or components thereof, including but not limited to losses, attorneys’ fees, costs, liabilities, damages, penalties, claims, demands, actions, or causes of action arising under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. (as amended) (CERCLA); Solid Waste Disposal Act (SWDA) (as amended); any federal or state rule or regulation promulgated or approved pursuant to CERCLA or the Resources Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq. (RCRA); and/or any applicable federal, state, provincial or local laws, rules, or regulations of any jurisdiction relating to the warning, labeling, management, reuse, resale, transport, disposal, incineration, stewardship or recycling of Inventory Products and components thereof. For the purposes of this indemnification, "warning," "labeling," "management," "reuse," "resale," "transport," "disposal," "incineration", and "recycling" will have the meanings set forth in the statute or regulation under which an indemnification obligation under this paragraph arises or is alleged to arise.
In addition to your other indemnification obligations set forth in these Terms of Purchase or otherwise allowed by law, you will further indemnify, defend and hold T-Mobile (including its affiliates) and their respective officers, directors, employees, contractors, and agents, harmless from and against any and all claims, liens, losses, demands, causes of action, actions, costs, liabilities, and expenses, of any nature, (including but not limited to court costs, costs of investigation, and attorneys’ fees) arising out of or in connection with any actual or alleged:
(a) loss, theft or destruction, whether partial or whole, of the Inventory Products and other items in the possession or control of you or your agents;
(b) the reconditioning, refurbishing, resale, sale, handling, use, operation, recycling, transfer, disposal, destruction, or repackaging of the Inventory Products and other items provided under these Terms of Purchase (including without limitation any damage to property, personal injury or death arising out or related to any pickup, storage or transportation of any of the Inventory Products hereunder);
(c) the labeling, advertising and/or notices placed on the packaging or elsewhere or the lack of notices which should have been placed on the packaging;
(d) inaccurate descriptions of the contents of the Inventory Products and the package;
(e) breach of these Terms of Purchase (including but not limited to warranties and representations) by you or your officers, directors, employees, agents or representatives;
(f) failure to delete and remove all information or items contained in or on the Inventory Products and other items tendered to the freight carrier or sold under these Terms of Purchase to you, including but not limited to claims arising from the failure to comply with any sanitation requirements;
(g) the acts or omissions of you or your officers, directors, employees, agents or representatives;
(h) your disposal of the Identification Marks, Customer Information, the hard drive of any computer, deleted files and other information;
(i) your dispute with another user of the Site;
(j) T-Mobile’s use or publication of data or information provided by you;
(k) violation of any law, rule, regulation or authority by you or your officers, directors, employees, agents or representatives;
(l) your use of the Site; and
(m) any infringement or misappropriation of any proprietary rights by you.
While T-Mobile is under no obligation to do so, you agree to permit T-Mobile, its subsidiaries or affiliated entities, and its agents (including third parties) the right to visit your warehouse, facility, or place of business at any time in order to monitor compliance with these Terms of Purchase, including but not limited to an unannounced audit of your Inventory Product management and related sanitization processes and inspection of products. T-Mobile, its subsidiaries or affiliated entities or its designated agents will have the right to audit your books and records related to these Terms of Purchase, evaluate the Inventory Products to ensure they are managed and sanitized as required hereunder, and inspect your facilities and procedures at any time to assure compliance with these Terms of Purchase. You agree to provide T-Mobile’s designated audit and inspection team with access to the relevant records, facilities, and procedures. T-Mobile will pay the cost of any such audit and inspection unless the audit reveals that you are not performing in compliance with these Terms of Purchase; then, in addition to any other legal and equitable remedies available to T-Mobile, you will reimburse T-Mobile for the costs of the audit and inspection within (30) business days of receiving a written notice for reimbursement. In addition, if the inspection and audit reveals a condition that is unsatisfactory to T-Mobile in its reasonable business judgment, you will bear the costs for any reinspection and reaudit if desired by T-Mobile. The rights set forth in this Section 10 will survive for a period of three years following the termination or expiration of these Terms of Purchase.
- WARRANTY DISCLAIMER
THE INVENTORY PRODUCTS ARE PROVIDED BY T-MOBILE TO AND PURCHASED BY YOU ON AN "AS IS," "WHERE-IS" AND "WITH ALL DEFECTS AND FAULTS" BASIS. T-MOBILE UNDERTAKES NO RESPONSIBILITY FOR THE QUALITY OF THE INVENTORY PRODUCTS. T-MOBILE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE INVENTORY PRODUCTS OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION THE INVENTORY PRODUCTS’ CONDITION OR QUALITY OR THE WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. You hereby acknowledge that you used your own standards to determine the quality and value of the Inventory Products. You acknowledge that the Inventory Products may be damaged, defective, or otherwise lacking in merchantability and may not be fit for their usual, otherwise-intended purpose. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY
YOU ACKNOWLEDGE BY YOUR USE OF THE SITE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK.
THE ENTIRE RISK ARISING OUT OF ANY PRODUCTS OR SERVICES OFFERED ON OR IN CONNECTION WITH THE SITE, AND ANY CONTENT, CONTENT PROVIDED BY YOU, OR DIGITAL DOWNLOADS REMAINS WITH YOU.
IN NO EVENT WILL T-MOBILE OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF
– THESE TERMS OF PURCHASE OR
– THE USE OF OR INABILITY TO USE ANY PRODUCTS, SERVICES, CONTENT, USER CONTENT AND/OR DIGITAL DOWNLOADS,
– THE PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES,
– OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, USER CONTENT AND CONTENT OBTAINED THROUGH THE SITE
• WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OF PURCHASE OR POSTED ON THE SITE, THE MAXIMUM LIABILITY THAT T-MOBILE WILL HAVE IS LIMITED TO ANY AMOUNTS ACTUALLY PAID TO T-MOBILE BY YOU FOR THE PURCHASE PRICE OF THE PARTICULAR INVENTORY PRODUCT(S) AT ISSUE, WHICH FOR CLARIFICATION WILL NOT EQUAL THE AMOUNT OF THE PAYMENT FOR THE ENTIRE LISTING.
YOU ASSUME ALL RISK OF LOSS FOR SHIPPED INVENTORY PRODUCT(S).
USER INFORMATION SUCH AS ADDRESS THAT IS INACCURATE OR INCOMPLETE MAY RESULT IN DELAYS THAT WILL NOT BE THE RESPONSIBILITY OF T-MOBILE.
YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING WITHOUT LIMITATION IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THESE TERMS OF PURCHASE) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
FOR THE AVOIDANCE OF DOUBT, THESE LIMITATIONS OF LIABILITY WILL SURVIVE EACH PURCHASE AND ANY TERMINATION OF THIS THESE TERMS OF PURCHASE.
- USE OF THE SITE
The Site (including all content, functions and information) is provided on an "AS IS" basis without any representations or warranties of any kind, express or implied. You agree and acknowledge that B-Stock and T-Mobile make no guarantee of the accuracy, correctness or completeness of any Content and are not responsible for: any errors or omissions arising from the use of any thereof; any failures, delays or interruptions in the delivery of any Content contained with the Site; losses or damages arising from the use of the Content provided by the Site; any conduct by you in connection with the Site; or any Content or products provided through or in conjunction with the Site. You must comply with the operating rules and policies applicable to the Site as may be published or provided by B-Stock or T-Mobile in writing (including by posting on the Site) from time to time.
- TERMINATION OF TERMS OF PURCHASE
Notwithstanding anything to the contrary herein, T-Mobile reserves the right, at its sole discretion, to suspend or terminate your use of the Site with or without cause and without notice. If you fail to comply with any term or condition in these Terms of Purchase, T-Mobile may immediately terminate your account, deactivate your password and seek any other remedy available to T-Mobile or its affiliates.
- GENERAL PROVISIONS
- Relationship of the Parties. T-Mobile and you understand and acknowledge that each will perform its duties and obligations under these Terms of Purchase as an independent contractor and that these Terms of Purchase do not create a joint venture, partnership, employment or agency relationship between you and T-Mobile. You represent and warrant to T-Mobile that other than as specifically set forth in these Terms of Purchase, you have not paid any consideration or made any payments of any kind to any person or entity, including but not limited to T-Mobile employees, officers, and directors, to obtain these Terms of Purchase or for the purchase of the items being sold under these Terms of Purchase.
- Assignment. You will not delegate, subcontract, assign or transfer any of your rights, duties, or obligations under these Terms of Purchase or the right to purchase the Inventory Products without the prior express written consent of T-Mobile. In the event that T-Mobile grants any such consent, you will be solely responsible for the conduct of such agents and assignees, and the granting of such consent will in no way modify or affect your duties to T-Mobile under these Terms of Purchase. Subject to the foregoing, these Terms of Purchase will be binding upon and inure to the benefits of the parties and their respective successors and assigns.
- Governing Law. These Terms of Purchase will be governed by the laws of the state of Washington, without reference to any applicable conflict of law rules, the Convention on Contracts for the International Sale of Goods, or any local laws implementing such convention in any jurisdiction where the Inventory Products are sold. You irrevocably consent to the exclusive venue and jurisdiction of King County, Washington, courts for any action or proceeding arising out of these Terms of Purchase. YOU HEREBY WAIVE ANY RIGHTS THAT YOU MAY HAVE TO BRING DISPUTES FOR RESOLUTION BEFORE ANY OTHER COURT, TRIBUNAL OR FORUM. No waiver of or failure to enforce any provision of these Terms of Purchase will constitute a continuing waiver, and no waiver will be effective unless made in a signed writing. The division of these Terms of Purchase into separate sections, subsections and/or exhibits and the insertion of titles or headings is for convenience of reference only and will not affect the construction or interpretation of these Terms of Purchase. If any provision is held to be invalid, then that provision will be modified to the extent necessary to make it enforceable, and any invalidity will not affect the remaining provisions.
- Compliance with Law. You represent and warrant that you will comply with all applicable laws, rules, and regulations in your performance of these Terms of Purchase, including but not limited to export laws as outlined in the Export Administration Regulations (EAR), and the United States Foreign Corrupt Practices Act (FCPA) and all other applicable anti-bribery laws. You agree that all sales are ‘Ex Works - Point of Purchase’. Title and risk of loss pass to you, including payment of all transportation and insurance cost, from the Point of Purchase. You represent and warrant that you will not export any of the Inventory Products. Notwithstanding anything else to the contrary herein contained, you will not export for sale or resell (and will ensure that contracts for your sales prevent the export for sale or resale of) any Inventory Product to or import into any country outside the United States. You will not directly or indirectly sell any Inventory Product within the United States if you have knowledge or have reason to believe that the purchaser or any third party will export the Inventory Product for sale or resale or import into any country outside the United States. You will not remove (and will ensure that contracts for your sales prevent the removal of) any notices that may appear on the packaging restricting sale of any Inventory Product outside of the United States. In addition to all other requirements contained in these Terms of Purchase, you agree to comply with any additional requirements imposed by T-Mobile’s vendors and/or the original manufacturers of the Inventory Products.
- Notices. All notices, demands and other communications that are required or may be given under these Terms of Purchase will be in writing and will be deemed to have been duly given if emailed by T-Mobile or if mailed by either party certified mail, return receipt requested, or by a nationally recognized overnight courier service, receipt confirmed. Notices to you via email will be deemed effective at the time the email is sent. In the case of notices via certified mail or courier service, notices will be deemed effective upon the date of receipt. Notices to you will be addressed to the email or physical address you provided during your Site registration process, and notices to T-Mobile must be mailed and addressed to T-Mobile USA, Inc., Attn: [•], 12920 SE 38th Street, Bellevue, WA 98006 U.S.A., with a copy of legal notices to T-Mobile USA, Inc., Attn: Deputy General Counsel, 12920 SE 38th Street, Bellevue, WA 98006 U.S.A.. If T-Mobile receives a message that your email address is no longer valid or that the email communication could not be delivered, notice will be deemed to have been provided to you at the time T-Mobile received notice of non-delivery.
- Authority. You represent and warrant to T-Mobile that if you are using the Site on behalf of a company or entity that will purchase the Inventory Products, such company or entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and that you and the company have the requisite power and authority to execute and deliver these Terms of Purchase and the requisite power and authority and ability to perform the obligations under these Terms of Purchase, including the purchase of the Inventory Products. You further represent and warrant that these Terms of Purchase have been duly authorized, executed and delivered by you and constitute a valid and binding obligation of you or the company or entity on whose behalf you are entering into these Terms of Purchase enforceable against you or such company or entity according to its terms.
- Force Majeure. T-Mobile will not be liable or responsible to you nor be deemed to have defaulted under or breached these Terms of Purchase for any failure or delay in fulfilling or performing any provision of these Terms of Purchase when and to the extent such failure or delay is caused by or results from acts beyond T-Mobile’s reasonable control, including without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) action by any governmental authority; (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns or other industrial disturbances.
- The Terms of Purchase was last updated on March 13, 2019. Please check our Terms of Purchase periodically for changes.